Seychelles Child Law Reform Commission completes review of Penal Code and will propose new sexual offences law with enhanced protections for children
The following note provides an update on the work undertaken by the Seychelles Child Law Reform Committee since its establishment in June 2020, and its plans for 2021. This note has been prepared by the Chairperson of the Child Law Reform Committee (CLRC), Justice Dr. Mathilda Twomey, and Alan Wallis, Head of the CLRC Technical Committee, with input from the CLRC Members.
On 16 April 2020, the Supreme Court delivered judgment in R v ML and Ors in which three men were sentenced to varying prison terms for a range of sexual offences committed against a number of young girls. The nature of the crimes, the age of the victims, the manner in which young girls were groomed, blackmailed and subjected to planned and calculated degrading and coerced digital and physical sexual acts understandably led to outrage, sympathy, sadness and criticism of the Judiciary, the government, law enforcement and, in some unacceptable instances, the victims and their families. These types of cases have, in recent years, come before the courts with greater frequency and highlight:
- The role of social media platforms such as Facebook and how they create an enabling environment for sexual predators that seek to target children. This threat is not unique to Seychelles; it is a global problem, which many countries are attempting to tackle. Seychelles is not immune, and it highlights new challenges for law enforcement, the courts, legislators, parents, guardians, caregivers and social services.
- A culture of victim shaming in Seychelles, in which the victims of sexual predators are blamed, with little understanding of the psychological manipulation that sees adults preying on immaturity and youth for sexual gratification. If this case has shown us anything, it is that because of victim shaming, children may succumb to blackmail and have coerced sex with someone rather than having their illicit photos, or abusive conduct, made public.
This case served as an unfortunate catalyst for the urgent need to prioritise the review of Seychelles’ response to child abuse. It presented the opportunity to initiate new conversations on legal reforms, institutional reforms and public outreach to better respond to child abuse and sexual assault, which may not be adequately catered for under our current legal framework.
The establishment of the Seychelles Child Law Reform Committee
On 21 April 2020 the former President of Seychelles, Mr Danny Faure, convened an urgent inter-governmental meeting to discuss child protection matters in Seychelles. A key recommendation was the establishment of the Seychelles Child Law Reform Committee (CLRC), which was formally appointed by the former President on 30 May 2020, and comprises experts from the Judiciary, the Attorney-General’s Chambers, the Department of Social Affairs, Seychelles Police, National Council for Children and the Ministry for Education.
The CLRC is mandated, in accordance with detailed terms of reference, to review the existing legal framework applicable to children, and make recommendations for legal reform to enhance the legal protections afforded to children in line with Seychelles’ constitutional and international law obligations and international best practice. The CLRC is supported by a technical committee, and has engaged local and international experts since its establishment. The CLRC has received the continued support of newly elected President, Mr Wavel Ramakalawan.
Commencing the Review
The CLRC began its work in June 2020. A review of this nature is not a small task, and the priority for the CLRC was to identify key principles that would guide its work, which include:
- The promotion of “the best interests” of the child at all times;
- Ensuring privacy and anonymity for all victims;
- The adoption of a victim, non-discriminatory, centred approach;
- Ensuring all recommended laws and policies are consistent with the government’s legal obligations and reflect best practice;
- Criminalisation of all forms of harmful conduct committed against children through the recommendation of new offences not in Seychelles law and accommodation of offences committed through new technologies;
- A commitment to drafting clear and non-discriminatory legal provisions, that allow for empowerment, effective advocacy, strong policy and practices, consistency in application and encourage positive shifts in attitude and behaviour at a societal and cultural level;
- Incorporating inter-sectoral and inter-disciplinary evidence based recommendations;
- Ensuring the voices, views and experience of young and vulnerable persons inform recommendations;
- Ensuring the protection of constitutional rights in all recommendations.
In line with principles outlined above, the CLRC then began a rigorous mapping exercise, gathering information and mapping the applicable legal framework, engaging with experts and researching specific issues and laws. The objective was to ensure CLRC’s review of Seychelles laws is based on solid evidence that draws on domestic experience and input, international and regional laws, comparable laws from other countries and the input of local, regional and international experts. On completion of the review, a number of themes and issues were identified, which necessitated the review of specific laws, including the Penal Code, Children Act, Evidence Act, Criminal Procedure Code and corresponding regulations and policies. The CLRC decided to begin the review by looking at the Seychelles Penal Code, which provides for sexual offences involving children. The CLRC acknowledged positive amendments to the Penal Code, and noted that certain provisions remain inconsistent with Seychelles’ international obligations, and do not give full effect to the protections contained in the Constitution. Furthermore, the Penal Code has a limited number of offences that are relevant to children; it does not cover new forms of sexual assault and harmful conduct facilitated by technology; and in some instances risks criminalising the conduct of child victims.
The need for a dedicated sexual offences law
Following its review of the Penal Code the CLRC unanimously agreed that it would not be possible to evaluate and assess the adequacy of laws criminalising sexual offences committed against children without considering the broader sexual offences regime that is applicable to all sexual offences, and the corresponding laws of evidence and criminal procedure. A sexual offence that can be committed against an adult can be committed against a child, so a robust sexual offences legal framework is essential, in addition to child specific sexual offences. The CLRC agreed therefore that it would propose a stand-alone dedicated sexual offences law, and would develop a draft framework to this effect.
A number of countries around the world have undertaken law reform processes on child protection. Seychelles is therefore fortunate to be in a position to learn from the experiences of other jurisdictions towards adapting and incorporating appropriate laws to respond to this issue in Seychelles. The CLRC’s position in this regard has been guided by its alignment with the position that sexual offences laws, if they are non-discriminatory, properly implemented and enforced consistently and fairly, can play a vital role in protecting people and deterring the commission of offences as well as support the rule of law in general; building confidence in the formal justice system; protecting and guaranteeing fundamental human and constitutional rights; and encouraging positive shifts in attitude and behaviour at a societal and cultural level.
The CLRC is in the final stages of completing a draft legal framework that draws on sexual offences laws and research from around the world. The CLRC is recommending the introduction of a range of new offences including, the crime of rape, sexual grooming, offences involving the use of intimate images and sexual communication with children through social media and other digital platforms; mandatory reporting; harassment offences such as cat calling and flashing; blackmail and others. The CLRC is also recommending a range of procedural laws that will safeguard child victims and witnesses from further trauma when having to interact with the criminal justice system, and obligations on the police, prosecutors, social services and judges when investigating and adjudicating sexual offences. The CLRC is also recommending enhanced protection for persons living with disabilities.
Looking to 2021
The CLRC will, with the support of President Ramkalawan, continue its work in 2021. The CLRC will share its recommendations and the draft legal framework with the President and further recommend that that extensive public consultation be conducted, including a dedicated Children’s Conference, to ensure the voices of children and young children are heard and inform any new laws intended to enhance their protection.
The CLRC will also be reviewing other laws, and recommending consequential amendments that will need to be amended to accommodate its recommendations relating to the proposed sexual offences law.
The CLRC welcomes any submissions, views or comments from the public and children, and they will be considered in the ongoing work of the CLRC.
In their own words
CLRC Chairperson, Justice Mathilda Twomey awarded Human Rights Prize
Justice Twomey, the first Seychellois to be awarded a Human Rights Prize from the French and German governments, was one of 15 people in the world to receive a prize for their work in the protection of minors. The Franco-German Human Rights Prize was created to pay tribute to those who defend human rights (HRD).
Justice Twomey, a passionate advocate for human rights and children’s rights dedicated this award to the CLRC, saying that, “Without the platform and the mandate that the CLRC has created, and the dedicated and passionate members of the CLRC and technical committee, the prospect of seeing tangible legal change would not have been possible.”
PS William: “For many years I have sought dedicated legislation and personnel for the protection of children. It has been disheartening to see that people who are legally minded and in positions of power have traditionally held back progress in this regard. However, I am now hopeful that with this reform there will be a more concerted effort, which will guarantee successful implementation. At the end of my career I wish to leave a legacy of adequate protection of children in Seychelles.”
Dr. Athanasius: “In my decades long career as a Paediatrician, working with and advocating for children, it has been a struggle getting people to really understand what child protection means. This exercise has been a revelation in properly understanding the gaps, where the law is lacking and what needs to be done. The bottom line is that this reform has been a long time coming and I pray that we get to see the changes necessary to uphold children’s rights and safeguard their childhood, in our lifetimes.”
Mrs. Monthy: “There is currently a gap with regard to education. The recent cases and response from the public, children and educators has revealed a lack of knowledge and understanding when it comes to issues of child abuse, the frameworks in place and those that are needed. We need to lay the groundwork, taking example from other countries who have successfully implemented child protection laws. There is also a language barrier that needs to be addressed, and sexual education needs to be reinforced in schools and communities.”
Child Law Reform Committee Members
- Justice Dr Mathilda Twomey (Chairperson)
- Frank Ally, Attorney General
- Ted Barbe, Deputy Commissioner of Police
- Ambassador Dr Erna Athanasius, Chairperson National Commission for Child Protection and National Council for Children
- Linda William, Principal Secretary for Social Affairs
- Catriona Monthy, Ministry for Education
Alan Wallis, Phumzile Sokhela, Olya Hetsman, Emily Gonthier, Godknows Mudimu